Armstrong v. Clarkson Coll.

Decision Date01 September 2017
Docket NumberNo. S-16-717.,S-16-717.
Citation297 Neb. 595,901 N.W.2d 1
Parties Kelly ARMSTRONG, appellee, v. CLARKSON COLLEGE, appellant.
CourtNebraska Supreme Court

Brien M. Welch and Kathryn J. Cheatle, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Jason Mario Bruno and Robert S. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., Omaha, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Wright, J.

I. NATURE OF CASE

A jury awarded Kelly Armstrong a $1 million verdict on her breach of contract claim against Clarkson College (Clarkson). Armstrong had been a student at Clarkson, but was placed on probation and then administratively withdrawn from the school by Clarkson. Clarkson appeals the district court's denial of its motion for a directed verdict, the denial of several requested jury instructions, the exclusion of evidence, and the denial of its motion for new trial. Because we conclude that the district court erred by refusing to give Clarkson's requested jury instruction on Armstrong's alleged failure to fulfill a condition precedent by not exhausting the college's grievance procedure, we reverse, and remand for a new trial.

II. BACKGROUND
1. CLARKSON'S CRNA PROGRAM

Clarkson is a nonprofit health science college located in Omaha, Nebraska. In 2010, Clarkson established a program for a master of science in nursing with a specialization in nurse anesthesia (CRNA program). After a student graduates from the program, the student can take a national examination to become a certified registered nurse anesthetist (CRNA).

The CRNA program, like other nurse anesthetist programs, has two components, didactic and clinical. Clarkson's program is "front-loaded," with the completion of the didactic portion first, followed by the clinical portion. The didactic portion, consisting of coursework, lasts 12 months. The clinical portion is completed at various clinical sites and lasts 18 months. In the clinical stage of the CRNA program, the students work at a hospital under the supervision of the hospital's CRNA staff, gaining experience in nearly every type of case a CRNA would encounter in practice. Clarkson contracts with clinical sites to provide clinical education for its students. These contracts, known as clinical affiliation agreements, outline the obligations of both Clarkson and the clinical sites.

When the events underlying this litigation occurred in 2013, Clarkson had five primary clinical sites. A primary clinical site is one where a student completes the vast majority of his or her clinical work. In 2013, Clarkson also had two rural specialty sites where a student in the CRNA program could gain experience in a rural hospital setting. These specialty sites are designed to supplement the student's clinical experience, but unlike the primary clinical sites, do not provide all of the types of experience a student needs to complete his or her clinical requirements.

In the fall of 2011, Armstrong enrolled in the CRNA program. She completed the didactic portion, earning a 3.84 grade point average. Armstrong then began the clinical phase of the program and was assigned to the University of Nebraska Medical Center (UNMC) as her main clinical site. She then began doing a rotation at a specialty clinical site in Red Oak, Iowa.

2. PROGRAM HANDBOOKS AND MANUALS

At trial, several of Clarkson's student handbooks and policy manuals were admitted into evidence, including: Clarkson's student handbook, the handbook for nurse anesthesia students, Clarkson's nurse anesthesia program policies and procedures manual, Clarkson's nurse anesthesia program clinical site manual, and Clarkson's grievance policy. Clarkson's Code of Conduct (Code of Conduct) is contained within its student handbook, which applies to all students, not just those in the CRNA program.

Many of the Clarkson handbooks and policies contained disclaimers that they were not contractual in nature: the CRNA program handbook states, "The information in this syllabus is intended to be informational and not contractual in nature," and the CRNA program policies and procedures manual states, "The statements contained herein are not to be regarded as an offer or contract." Clarkson's student handbook and its clinical site manual do not appear to contain contractual disclaimers. Most of the handbooks also contained clauses reserving Clarkson's right to change the policies at any time.

Also admitted was the code of ethics for the CRNA, which is adopted and promulgated by the American Association of Nurse Anesthetists (AANA). Clarkson studentsin the CRNA program are required to follow this code of ethics (AANA Code of Ethics) under the CRNA program handbook.

3. AANA CONFERENCE

When Armstrong was approximately halfway done with the clinical portion of the CRNA program, she decided to attend a national AANA conference in Washington, D.C. Armstrong testified at trial that she and Kristal Hodges, who Armstrong described as her "best friend in the program at the time," decided to go, because they thought the conference would be fun and would provide a break from the rigors of clinical work. The conference took place on April 14 to 17, 2013. Armstrong and Hodges were the only two students in the Clarkson CRNA program who attended this national conference.

4. AANA POLITICAL ACTION COMMITTEE POTOMAC CRUISE FUNDRAISER

The AANA conference was 4 days long, Sunday through Wednesday. The conference on Sunday featured discussions on the legislative and political issues facing the nurse anesthetist profession. Hodges arrived on Saturday, the day before the conference, while Armstrong arrived on Sunday afternoon. The two stayed in the same hotel room.

On Sunday night, AANA's political action committee hosted a fundraiser event for the conference attendees. The fundraiser was a boat cruise on the Potomac River. The attendees were instructed to wear either professional attire or dress for the event's 1980's theme. Many members of the Nebraska Association of Nurse Anesthetists and Nebraska CRNA's were in attendance at the fundraiser.

Conference attendees were provided bus transportation to the fundraiser boat ride. Alcohol was served at the fundraiser; the attendees were given two drink tickets, and glasses of champagne were offered to them as they arrived on the boat.

Armstrong testified that she consumed only four alcoholic drinks on the cruise. She testified that she used her two drink tickets for two beers, but did not remember finishing her champagne. She said that Timothy Glidden, the chief CRNA at UNMC and Armstrong's clinical supervisor, bought her a beer as did another individual. Armstrong estimated that the fundraiser lasted about 4 hours.

5. BUS RIDE

After the fundraiser ended, the attendees were transported by bus back to the hotel. The bus was filled with conference and fundraiser attendees, including many from Nebraska. Also on the bus was Nancy Gondringer, the federal political director and past president of the Nebraska Association of Nurse Anesthetists and a member of the "Small States Committee" of the AANA. Glidden was on the bus, as was another UNMC CRNA and also a Clarkson CRNA instructor. Dennis Bless, the then-incoming president of the AANA, was also on the bus. Other students in CRNA programs and CRNA's from Nebraska and other states rode on the bus as well.

There was some conflict in the witnesses' testimony at trial about what happened on the bus ride. Armstrong testified that she got on the bus and took a seat near Bless. She said that she and Bless were joking about the 1980's costumes that some were wearing as part of the fundraiser's theme. Hodges was seated behind her. Armstrong said that she asked for the fake moustache that Bless had as part of his 1980's costume and then stood up and turned around to Hodges, placed the moustache on her stomach, just below her belly button, and made a joke about a term used to reference ungroomed pubic hair. Armstrong said that she had used the term in the past as a nickname for Hodges or to tease her and that it was an "inside joke" between the two about Hodges' being single, because "if you're going to go out and start dating, you better clean that up." Armstrong testified that she told Bless that ungroomed pubic hair could have been part of her 1980's-themed costume, after which she obtained his fake moustache to make her joke.

Other witnesses, such as Hodges, Gondringer, and Glidden, gave a slightly different account. They testified that Armstrong held her pants down near her pubic symphysis, with the moustache just above her pants, walking up and down the aisle of the bus, saying things like, "Look at my [ungroomed pubic hair]," and "[t]his is how yours looks like" to Hodges. Hodges, Gondringer, and Glidden told Armstrong to stop several times, after which she eventually sat down. But Armstrong testified that the other witnesses' accounts of her behavior were "exaggerated quite a bit."

6. PROBATION
(a) Return From Conference

As Armstrong was en route home from the conference, Hodges called Armstrong because she was concerned that Armstrong had missed her flight because she did not wake up in time that morning. According to Hodges, when they spoke over the telephone, Armstrong told Hodges that Hodges did not know how to have fun and was "too uptight." They argued about what had happened at the conference. Hodges told Armstrong that Armstrong may be in some trouble with Clarkson, because "[t]here were so many people there" and "[s]omebody's going to say something."

Dr. Mary Hoversten, the director of Clarkson's CRNA program, soon received word of the incident on the fundraiser bus ride. The day the conference ended, about 3 days after the incident, Hoversten received a telephone call from Hodges, informing her about the incident. Hodges was emotional on the call and told Hoversten that Armstrong's behavior was unprofessional and very embarrassing to her. The next morning, Hoversten informed her supervisor of the...

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